Under the Spotlight… A Review of Points of Dispute Post Jackson

We are now over a year on post Jackson and so far there appears to have been little feedback with regard to the Court’s approach to Points of Dispute and Replies and any resulting applications.

Alongside the introduction of Provisional Assessment, the rules relating to Points of Dispute and Replies were redrafted to ensure that material now presented to the Court is relevant and sets out contentions clearly and concisely.

Practice Direction 47, paragraph 8.2 states that “Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must:

(1) Identify any general points or matters of principle which require decision before the individual items in the bill are addressed, and

(2) Identify specific points, stating concisely the nature and grounds of dispute. Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G.”

Referral to authorities, quoting of well known judgments, lengthy objections and item by item disputes are discouraged and are not reflective of the model template annexed to the Practice Direction.

The word “must” means there is little or no scope for arguing over this point. However, Ontime Costs frequently receive Points of Dispute from well known costs practices and Solicitors that simply do not comply with the rules.

We regularly receive Points of Dispute that are excessive in length and often in excess of 20 pages or in the most extreme example 40 pages in modest claims where the base costs claimed are less than £20,000.00 and do not follow the Precedent G format with no reason why the Defendant has deviated from the model precedent.

Other examples include Points of Dispute which are by no means short or to the point and include lengthy, repetitive and excessive points, using unnecessary words, and opinions, essentially making submissions on paper as if it were an oral hearing.

The practice direction goes on to state at paragraph 12.1 that any reply served by the receiving party “must be limited to points of principle and concessions only. It must not contain general denials, specific denials or standard form responses”.

There is no specific guidance beyond the template Precedent G as to what constitutes general points or matters of principle and therefore we can only conclude that they are limited to those that “require decision before the individual items in the bill are addressed” CPD47 8.2(A). Disputes raised as to the reasonableness of a particular item or disputes as to document time are not matters of principle.

Therefore, by virtue of the new Practice Direction 12.1 to CPR 47.13 the Claimant is limited in replies to concessions and responding to points of principle only. Often the Claimant is prejudiced as we are unable to provide a substantive response to the Defendant’s lengthy and excessive Points of Dispute as to do so would too be in breach of the CPR.

We have made a number of applications to strike out the Defendant’s Points of Dispute and have had success in achieving the same where the Court have found them to be excessive and have not followed Precedent G format.

Whilst there is no obvious sanctions contained within the rules, where you consider the Defendant’s Points of Dispute are non compliant, you should in the first instance write to the paying party setting out your contentions and ask them to amend and re-serve compliant Points of Dispute. Thereafter, should this not be agreed an application should be considered either for strike out / unless order, the costs of which the paying party should bear.

Whilst the Courts will be keen to ensure compliance with the new rules and parties should not be permitted to simply disregard them, applications on every case will be discouraged, particularly in view of the Court’s recent attitude to satellite litigation.

A tactical and more practical approach in the more modest cases would be to ensure any compliance point is raised as a matter of principle within your reply and request this be dealt with by way of sanctions in assessment costs. Consideration as to applications should be reserved for those particularly abhorrent examples.

However, with more and more non compliant Points of Dispute being received and the Defendants’ attitude seeming to be to ignore the rules and revert to traditional drafting styles, more guidance and a stricter approach from the Courts is required.